107 F. 437 | 3rd Cir. | 1901
Lead Opinion
Leo Alexandroff came to this country in October, 1899, in company with 53 men and an officer, all of whom, as well as himself, were members of the Russian navy. They were sent here to form part of the crew of the cruiser Variag, which was then in course of construction for the Russian government at the city of Philadelphia. The vessel was nearing completion, but was still on the stocks, and had not been accepted, when Alexandroff, who had not been aboard of her, went, without leave, from Philadelphia to the city of New York, where he soon obtained employment, and formally declared his intention to become a citizen of the United States. Having thus manifested his purpose to renounce the service in which he was enrolled, he was arrested upon the written request of the Russian vice consul, and on June 1, 1900, was committed by a United States commissioner to the prison of Philadelphia county, upon a mittimus which recited that the cause of his commitment was “desertion from the imperial Russian cruiser Variag,” and that he had been apprehended upon the “complaint of the captain of the said cruiser Variag, in accordance with the terms of the treaty between the United States and Russia.” Thereupon a writ of habeas corpus for his production was allowed by, and issued out of, the district court of the United States for the Eastern district of Pennsylvania. It was directed to the keeper of the prison, and to “Gaptain Vladimir Behr, Master of1 the Russian Cruiser Variag,” but the only return thereto was made by the former, who produced the prisoner and submitted a copy of the commissioner’s precept.
“The said consuls, vice-consuls and commercial agents are authorized to require the assistance of the local authorities for search, arrest, detention and imprisonment of the deserters from ships of war and merchant vessels of their country. For this purpose they shall apply to the competent tribunals, judges and officers, and shall in writing demand such deserters, proving by the exhibition of the registers of vessels, the rolls of the crew, or by other official documents that such individuals formed part of the crews; and this reclamation being thus substantiated, the surrender shall not be refused.”
The federal courts should, of course, unhesitatingly and with scrupulous fidelity exercise any jurisdiction they possess to effectuate the treaty obligations of the United States. But the scope of such obligations, as of ordinary contractual engagements, is to be determined by the terms of the instrument creating them; and by no reasonable construction of the article in question can it be made to comprise any undertaking with respect to deserters generally. On the contrary, deserters from ships of war and merchant vessels are distinctly specified, and therefore to such deserters only can the mutual stipulations of the contracting governments be related. “Expressio unius est exclusio alteráis.” If more had been intended, less would have been said; but it is in reality manifest that such an event as we are now concerned with was not contemplated at all, for it could not then have been anticipated that the circumstances necessary to its occurrence would ever arise. As was said by the learned judge below:
“Tbe article In question is dealing with completed vessels, manned by organized crews, that may be visiting the ports of the foreign power, and to that subject its provisions must be confined.”
The unfinished Variag was not a “ship,” in the sense in which that word was used in the treaty. Completed ships were exclusively in mind. This, we think, is evident from the whole tenor of the article, and is made especially apparent by its provision for proof by documents which ordinarily pertain to perfected and entire vessels only. She certainly had not become a Russian ship, for under the contract for her construction the Russian government might still have rejected her. Moreover, it is hardly supposable that she would, in her then condition and situation, have had a crew, and the fact is that she had none. A number of men had been assigned for that service, but, as they had not entered upon it, there was as yet no crew in being, and Alexandroff’s abandonment of those who were to form part of the projected crew cannot be said to have been a desertion “from the ship,” for the undisputed evidence is that he had not at any time been aboard of her. The conclusion seems to be inevitable that the learned district judge was right in holding that the treaty under which the arrest was made did not justify it; but it is now further contended that, as an act of comity, irrespective of the treaty, an
In proceedings upon habeas corpus the authority of the courts of the United States is not so restricted as to compel them in every instance either to discharge the prisoner absolutely, or to remand him to the custody of the person producing him. These courts, at least, are empowered and required to “dispose of the party as law and justice require” (Rev. St. § 761), and if, under the law of nations and the facts of this case, any representative of the Russian government was entitled to have Alexandroff delivered to him, we do not doubt that he should have been so disposed of; and hence we are brought to inquire whether, under any rule of comity, having the force of law, and therefore judicially cognizable, such delivery was demandable. In dealing with this question we will assume the correctness of the proposition that, where sufficient ground for his detention is shown, a prisoner is not to be discharged for defects in the original arrest or commitment; but we cannot accede to the theory advanced in argument, that the keeper of the county prison, in detaining Alexandroff, was acting as the agent of Oapt. Behr. He had no right to deprive him of his personal liberty upon the mere behest of any man, and it would be unjust to ascribe to him the arrogation of any such right. He detained the prisoner by virtue of a warrant issued by a public officer in seeming conformity with law, and that warrant, and nothing else, was set up in justification. It did, it is true, direct that the prisoner, unless discharged by due course of law, should be kept “subject to the order of the Russian vice consul at Philadelphia or of the master'of the cruiser Variag,” but this direction did not constitute the jailer the agent of either of those persons. It correctly defined the duty which would have devolved upon him if the commitment had been rightfully made under the treaty of 1832, but, as it was not, the direction which was given in supposed compliance with that treaty was simply inapposite and of no effect whatever. The situation, then, was, in fact and in law, this: Alexandroff was neither in the actual custody of Capt. Behr, nor under his control. He was detained solely and exclusively by the keeper of the prison, and Capt. Behr’s inclusion in the writ of habeas corpus was unnecessary and redundant. He was not required to answer it, and upon the hearing it appeared that no order for the prisoner’s discharge could with propriety or efficacy have been directed to him. In fact, he was not ordered to do anything whatsoever. His real position, therefore, was not that of a defendant who is constrained to respond to a demand, but of an intervener who himself asks the action of the court for the maintenance of a right to which he claims he is entitled. Consequently the precise question is not as to whether the courts of this country should compel an officer of a foreign navy to release a man who had come here under his command, but as to the right of such officer to require their assistance for the recapture of a deserter. Prom first to last this right has been asserted and insisted upon, and, if Alexandroff had been a member of a crew and had deserted from a Russian ship, its existence would be freely granted; for with respect
That the public vessels of a state are exempt from attachment or arrest under the municipal law of a foreign nation, even when found in waters within its jurisdiction, must be acknowledged. The Exchange v. McFaddon, 7 Cranch, 116, 3 L. Ed. 287. And “it is well settled that a foreign army permitted to march through a friendly country, or to be stationed in it by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place.” Coleman v. Tennessee, 97 U. S. 509, 24 L. Ed. 1118. But neither of these immunities is now in question. Neither of them has been invaded. Neither of them is impugned. No attempt has been made to subject a Russian vessel to any process of our courts, nor has exemption from their jurisdiction been denied to any member of the Russian army or navy. Alexandroff was arrested in pursuance of a request made by the Russian vice consul himself, and he was not in the custody of Capt. Behr at the time of his discharge. Consequently, neither the vice consul nor Capt. Behr was, at any stage or in any manner, coerced by or under the authority of the United States. The commitment was made upon the assumption that it was called for by the treaty of 1832, and when it appeared to the court inquiring “into the cause of restraint of liberty” (Rev. St. § 752) that this assumption was an erroneous one, it became the plain and imperative duty of that court, in the absence of any other ground for detaining the prisoner, to order his release. We agree that the application for his delivery to Capt. Behr legitimately presented a cognizable demand; but upon such an application, the party making it, who seeks the judgment of the court in his favor, becomes the actor. He invites the exercise of its jurisdiction. It is not imposed upon him. Furthermore, the rule of comity which accords to an army of one nation, when within the territory tof another by its permission, the privilege which is here asserted, is*not, in our opinion; pertinent to this case. We do not doubt that it is applicable to a marine force as well as to a land force, but as to either it respects organized bodies
The learned district attorney for the Eastern district of Pennsylvania, acting by executive authority, has suggested in writing that Alexandroff should be remanded to the county prison to await the orders of Capt. Behr. This suggestion will now be filed in the office of the clerk of this court, but, as it is not, in our opinion, well founded in law, it necessarily results that it cannot prevail. It presents no
“If this opinion bo correct, there seems to be a necessity for admitting that the fact might be disclosed, to the court by the suggestion of the attorney for the United States.”
We have reached the conclusion that neither the treaty which was at first relied on, nor the rule of comity which has since been pressed upon our attention, is applicable to the facts now presented; and therefore the order which was made by the district court must be, and is, affirmed.
Although I agree in the conclusion reached by Judge DALLAS, I deem it necessary to state, as briefiy as possible, the grounds upon which I hold that the relator should he discharged.
The learned judge of the court below was undoubtedly right, as the case was presented to him, in declining to hold Alexandroff, and in ordering his discharge. We surrender deserting seamen from foreign vessels, whether of war or of merchant marine, only under the obligation of treaties (1 Moore, Extrad. p. 61.2, § 408) ; and it was under the provisions of our treaty with Russia in that regard that it was claimed that Alexandroff was arrested and held subject to the order and requisition of Capt. Behr, who was in command of the detail of men belonging to the Russian navy, and awaiting the completion of the ship of war Variag, then on the stocks at Cramps’ Shipyards in Philadelphia. That his arrest and detention under color of process issued in pursuance of the stipulations of said treaty, and of the act of congress passed to carry out the same, were unjustified and illegal, has been fully and clearly shown in the principal opinion in this case. It is also clear, as stated in that opinion, that under the provisions of section 761 of the Revised Statutes the court below were not constrained to set the relator at liberty, even though the particular proceedings, and commitment pursuant thereto, by which he was held, were unwarranted and illegal. If, under the obligations of public law, or of the comity usually exercised between friendly nations, there was a duty on the part of the government of the United States to aid Capt. Behr in the capture of a deserter from his force, or to recognize the right of the commander of that force, in the exercise of military discipline, to cause his forcible arrest and detention by those under his command, it would have been the judicial duty of the court below to surrender the relator into the custody of the commander of that force, notwithstanding the indefensibility of the particular proceedings under which he was arrested. No claim on this ground appears to have been urged at the hearing of the cause in the court below. Notwithstanding this, we agree in holding that this contention may be made upon proper grounds before this court, and, if sustained, this court would he authorized to, and should, reverse the judgment of the court below, and order the relator to be delivered to the custody of the commanding officer of the Russian naval
While it is usual to speak of the “armies” of one sovereign crossing or remaining upon the soil of another, with the permission of the latter, as entitled to this comity, there is nothing in the reason of the rule, or of the authorities in support of it, which would deny this comity to any organized military force, however small, provided it was large enough to be susceptible of military organization and of acting offensively or defensively. In this case, therefore, I am of opinion that the detail of 58 men, if organized as part of the military and naval force of Russia, and coming here for the purpose disclosed in the record, might sufficiently possess the character that would, so far as this case is concerned, be entitled to receive and enjoy the comity and privileges flowing from such a permission as we have already described, if properly granted by our government. The record, however, is fatally defective, in that it does not disclose the absolutely essential fact that permission was given to such a force, or to the representative of its sovereign, to enter this country as an organized military body. In a matter so important as the assertion of the sovereignty of another country upon our soil, nothing but the clearest evidence of that executive permission from our government, which international law demands as a prerequisite to the enjoyment of those privileges which flow from comity, will justify the assertion of such a claim. When asked for the evidence of such executive permission, we are pointed by the appellants to the record, for a copy of the letter of the ácting secretary of the treasury, dated October 4th, 1899:
*445 “No. 19,805. Treasury Department.
“Office of the Secretary.
“Washington, D. O., October 4, 1899.
“Sir: Acknowledging the receipt of your letter of 24th ultimo, No. 557, I have the honor to inform you that, in compliance with request contained therein, instructions have been issued to the commissioner of immigration at the port of Now York to admit without examination the detail of one officer and flfty-three regular sailors whom yon state have been detailed to this country for the purpose of partially manning the cruiser now under construction for the Russian government at Cramp’s Shipyard in Philadelphia, Pennsylvania. The collector of customs has also been advised that the usual head tax of §1.00 is not to be collected in this case.
“Respectfully yours, O. L. Spaulding, Acting Secretary.
“T. U. S.”
This letter, it will be observed, has no address, and there is nothing in the record to show to whom it was written. We are told by counsel, and it seems to be assumed, that it was written to the Russian ambassador; but, even when we assume this, it tails far short of conveying to this court the information that is absolutely necessary for the contention of the appellants in this case, to wit, that the requisite permission was granted by the president to the Russian government to land, march across our countiy, and indefinitely hold therein a military force of the czar of Russia. Whether they were admitted as a military organization or not, they clearly were not immigrants, and therefore uot amenable to the immigration inspection laws, nor to the head tax imposed and collected by the customs authorities from immigrants. The same response would have been made as to any civil employes of the Russian government coming here temporarily in the government service. There is no evidence whatever that more was intended on either side. The evidence is .quite the other way. It does not appear what the request of the Russian ambassador was, to which this letter is said to be a reply. The wording of the treasury department’s letter does not necessarily imply a request from the Russian government that these men should he permitted to land as a military force. For an illustration of how information from the executive is conveyed through the secretary of state, in direct and categorical terms, see letter of Mr. Webster, secretary of state, to Mr. Crittenden, attorney general, March 15, 1841, in the Case of McLeod, 6 Webst. Works, 262. And it is to be observed that, where the executive permission in question is given, it is given by the president, through the secretary of state, who is the sole organ of executive authority for communication with foreign powers.
Rut reliance is also placed upon a matter that does not belong to the record, and forms no part of the proceedings in the court below. We refer to the suggestion made in this court for the first time by the district attorney of the United States for the Eastern district of Pennsylvania. It is claimed that this suggestion, purporting to be made by the direction of the executive authority of the United States, is binding upon this court. We do not deny that a suggestion so made by the proper law officer, representing in that regard the executive, might be an appropriate vehicle to convey from the executive to this court information of the fact, if fact it be, that this detail of men
I am of opinion, therefore, that there is no evidence, either in the record of this case or in the suggestion filed by the district attorney, that the permission of the executive, requisite to invoke the exercise of ihe comity claimed, was ever granted to the Russian government or its representative in respect to this detail of men under Oapt. Behr.
Dissenting Opinion
(dissenting). I dissent from the judgment of the court in this case on the ground that, in mv opinion, by the principles of international comity as recognized in i i country and declared by the Supreme Court Captain Behr has a right to exercise discipline over the Russian naval force which came to this country in his charge, including the power to arrest and have custody of Leo Alexandroff, the relator, as a deserter. This ground was not discussed or even considered by the learned judge who decided the case in the court below; nor am I aware that it was presented to him in argument. He said:
“The single question for decision is whether Article IX of the treaty with Russia, concluded in December, 1832, under which the arrest was made, justifies the prisoner’s detention.”
If the case had involved only the point on which it was decided below there could be little doubt as to the correctness of the decision. But in this court it has been presented in a new and very different aspect. The record shows that the relator and the other Russian sailors under command of Captain Behr came to this country as members of tlie Russian navy, under orders to form part of ihe crew of the cruiser Variag, a war vessel, then in course of construction for the Russian government at the ship yard of The William Cramp & Sons Ship & Engine Building Company in Philadelphia under a contract between that company and the Russian Ministry of Marine. The men composing this detail were subjects of Russia and in the service and pay of Russia, formed part of the military force of that empire, came to this country in a body under military discipline, and in a body entered on our soil, not as private individuals severally bound on business or pleasure, but for the specific and strictly public purpose of manning a cruiser about to be turned over to the Russian government. The broad principles which should he determinative of this case are stated with admirable clearness and force in The Exchange v. McPaddon, 7 Cranch, 116, 3 L. Ed. 287. Chief Justice Marshall delivering the opinion of the court said:
“Tlie world being- composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. * * * A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows the troops of a foreign prince to pass through his dominions. In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, tlie sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising*448 it, the purpose for which the free passage was granted would be defeated, and a portion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sovereign whose power and whose safety might greatly depend on retaining the exclusive command and disposition of this force. The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use > that discipline, and to inflict those punishments which the government, of his army may require. * * * When piivate individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and 'dangerous to society, and would subject the laws to continual infraction, and the government' to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.”
In Coleman v. Tennessee, 97 U. S. 509, 515, 24 L. Ed. 1118, the court, referring to the case of The Exchange as authority, said:
“It is well settled that a foreign army permitted to march through a friendly country, or to be stationed in it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place.”
The court quoted with approval the following passage from the opinion of Chief Justice Marshall:
“The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline and to inflict those punishments which the government of his army may require.”
So in Dow v. Johnson, 100 U. S. 158, 165, 25 L. Ed. 682, the same doctrine is recognized. Wheaton in his Elements of International Law, pt. 2, c. 2, § 9, says:
“A foreign army or fleet, marching through, sailing over, or stationed in the territory of another State, with whom the foreign sovereign to whom they belong is in amity, are also, in like manner, exempt from the civil and criminal jurisdiction of the place.”
While the terms “troops” and “army” are used in the above citations, I have no reason to doubt that the rule or law of comity as there enunciated is equally applicable to such a military body as the naval detail in question. It is not disputed that comity is operative in the case of an organized regiment of a friendly foreign power while on our soil by permission of the Executive of the United States, and that proper discipline and obedience may be enforced by those in command without reference to our laws, nor is it disputed that comity is applicable to a marine force as well as to a land force. But the position is taken by the learned presiding judge in his opinion in this case that the rule of comity respects organized bodies only; that Captain Behr and the men under him were not an integral component of the Russian navy, not having become part of the crew of the Variag; that the fact that the men were by Russian law subject to the Captain’s control did not of itself make them, when conjointly considered, a constituent unit of the Russian navy; that the question whether Captain Behr’s detail should be considered representative of the Russian navy cannot depend merely upon the number composing it; ■that the true criterion rests upon the distinction be
“Treasury Department,
No. 19,805. Office of the Secretary.
Washington D. O.
October 4, 1899.
Sir:—
Acknowledging the receipt of your letter of the 24th ultimo, No. 557, I have the honor to inform you that, in compliance with request contained therein, instructions have been. issued to the Commissioner of Immigration at the port of New York, to admit without examination the detail of one officer and fifty-three regular sailors whom you state have been detailed to this country for the purpose of partially manning the cruiser now under construction for the Russian Government at Cramp’s Shipyard in Philadelphia, Pennsylvania. The Collector of Customs has also been 'advised that the usual head tax of $1.00 is not to be collected in this case.
Respectfully yours,
O. L. Spaulding,
Acting Secretary,
T. U. S.”
It is evident on the face of the letter that it was intended for and presumably directed to some representative of the Russian government. That he was the Russian ambassador can hardly be questioned. It appears from the record that the counsel for the respond*
“In such case, without any express declaration waiving jurisdiction over the army to which this rigid oí passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faitli. * * * The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require.”
The consent given by the executive department to the entry of the Russian detail for the purpose of manning the Variag by necessary implication involved consent that the detail should in that character remain on our soil, and have a “right of passage” over our soil, for that purpose. Good faith between friendly nations as well as the obvious sense of the communication repudiates any other interpretation. The idea that the consent given was restricted to the mere admission of the detail upon onr soil, and that it was intended that immediately thereafter that body should lose its cohesive power and discipline as part of the military force of Russia, is inadmissible. If the consent given by the Treasury department is to be taken as the act of the Executive, international comity requires the recognition of a right on the part: of Captain Behr as commander of the detail to exercise military discipline, which, of course, includes the usual and indispensable power, possessed by commanders of military forces, to arrest and have custody of a deserter. The Executive
“We have seen that a license to pass through a territory implies inxmuni-' ties not expressed, and it is material to inquire why the license itself ihay not be presumed? It is obvious that the passage of an army through a for.eign territory will probably be at all times inconvenient and injurious, .and. would often be Imminently dangerolis to the sovereign through whose‘.dominion it passed. Such a practice would break down some of the most decisive distinctions between peace and war, and would reduce a nation to the necessity of resisting by war. an act not absolutely hostile in its character,, or of exposing itself to the stratagems and frauds of a power whoso integrity might be doubted, and who might enter the country under deceitful pretexts. It is for reasons like these that the general license to foreigners to enter the dominions of a friendly power is never understood to extend to a military, force; and an army marching into the dominions of another sovereign, may. justly be considered as committing an act of hostility; and, if not opposed by, force, acquires no privilege by its irregular and improper conduct. It may, however, well be questioned whether any other than the sovereign power of, the State be capable of deciding that such military commander is without a.' license.”
It may seriously be doubted whether a detail of the Bussian navy-consisting of an officer and fifty-three subordinates, peaceably entering this country for the purpose of manning a Russian war ves-: sel constructed on our soil by an American company under a con-' tract with the Russian government, can justly be considered on tbesame footing as “an army marching into the dominions of another sovereign,” in the sense in which those words were employed in the.' above quoted clause. If, however, it be conceded that such detail, should be so considered, there is no evidence whatsoever that the' Executive, or any other branch of government of the United States,; has decided that such detail entered this country or has remained, here without proper license or permission. Wholly aside from the’ correspondence with the Russian ambassador, tbe record shows the military character of the detail and the purpose for which it cáme. to and remained on our soil, and the United States has not in any', manner questioned the authority and right of that detail to com.' tinue here in that character for the accomplishment of the purpose for which it came. On the contrary the government has clearly recognized such right and authority. By leave of this court the, United States attorney for the eastern district of Pennsylvania at the hearr: ing filed the following suggestion: , ,.
“The Keeper of the Philadelphia County Prison and Captain Vladimir Behr,Master of the Bussian Cruiser Variag,
Appellants;
The United States, of America ex rel. Leo Alexandroff, ' ' '"j
Appellee.;
United States Circuit Court of Appeals, Third ,Circuit, September Term, 1900. - , . ’
And now, to wit, this First day of October, A. D. 190Ó, comes JamqsB’ Holland, Esquire, United States Attorney for the Eastern District of Penm sylvania, at the instance of the Executive Department of the Government óf the United States, and files of record a suggestion as follows: •
Inasmuch as it appears "by the record in the above entitled cause, that Leo Alexandroff, the relator, is a subject and citizen of ,the Empire of Russia and*454 enrolled in the naval service of his country as an assistant physician; that he came to the United States, together with fifty-two other men, under the charge of an officer of the Russian Imperial Marine, detailed for the purpose of manning the Cruiser Variag, a vessel under construction for the Russian Government by the William Cramp Ship and Engine Building- Company of Philadelphia; that prior to the arrival of the said officer and men and in pursuance of correspondence with the Russian Ambassador, instructions were issued by the Secretary of the Treasury at Washington to the Commissioner of Immigration at New York, admitting the said officer and his subordinates for the purpose of partially manning the Cruiser, and inasmuch as the said Leo Alexandroff remained in the Rvissian Naval Service after his arrival in the United States until April 20th, 1900, when he deserted, lived a week in Philadelphia and then went to New York, where he was apprehended by Captain Vladimir Behr, Master of the Variag-, brought to Philadelphia and confined in the County Prison for safe keeping, and inasmuch as his period of enlistment in the Russian Imperial service was for six years from 1898, and, in pursuance of said enlistment, he left Russia for America, knowing he was to become one of the crew of the newly constructed cruiser and for that purpose alone and upon his arrival here and until he deserted, lived with the other members of his company, was supported by the Russian Government, and received wages for his services as a member of her crew, and inasmuch as it further appears by the record in the above entitled cause, that the said cruiser Variag was built under written contract between the Russian Government and the Cramp company, which provided among other things, as reference to the said record will more fully and at large appear, that the said vessel and all materials entering into her or intended for her construction should become and be the exclusive property of the Russian Ministry of Marine, and inasmuch, further, as there exists ■ between the United States of America and his Majesty, the Emperor of Russia, a state of peace and amity, and inasmuch as it does not appear but that the said officer having in charge the relator and the other sailors he brought to this country has conformed in all things to the law of nations and the laws of the United States and his authority over and custody and control of the said relator should not be interfered with directly or indirectly by the Government of the United States or by any of the courts created in pursuance thereof, it is
Respectfully Suggested
To the Honorable, the' Judges of the Circuit Court of Appeals, for the Third Circuit, that Leo Alexandroff, the relator, should be remanded to the custody of the keeper of the County Prison at Philadelphia, to await the orders of Captain Vladimir Behr, the Master of said Cruiser Variag.
James B. Holland, United States Attorney.”
This suggestion, made by executive authority, while informal in some respects, not only is a direct recognition and ratification by the Executive of the action of the secretary of the Treasury in admitting Captain Behr and his command to our soil, but discloses in an unmistakable manner that the attitude of the government toward that detail is and has been one of international comity. It is not suscéptible of any other construction. Further than this, it is a request by the Executive, addressed to this court, that the relator, who is now within its control, be remanded to the custody of the beeper of the prison to await the orders of Captain Behr, on the ground that, in view of the existence of a state of peace and amity between the United States and Russia, Captain Behr’s “authority over and control of the said relator should not be interfered with directly or indirectly by the government of the United States or by any of the courts.” I do not deem it of any moment that the suggestion refers to facts as appearing by the record instead of in
In Nishimura Ekiu v. U. S., 142 S. 651, 662, 12 Sup. Ct. 336, 35 L. Ed. 1146, Mr. Justice Gray in delivering the opinion of the court said:
“A writ of lialicas corpus is not like an action to recover damages for an unlawful arrest or commitment, hut its object is to ascertain whether the prisoner can lawfully lie detained in custody; and if sufficient ground for his detention by the government is shown, he is not to bo discharged for defects in the original arrest or Commitment.”
The intent of section 761 is that the party seeking a discharge through habeas corpus proceedings should he disposed of as law and justice at the time of such disposition shall require. lasigi v. Van de Carr, 166 U. S. 391, 17 Sup. Ct. 595, 41 L. Ed. 1045. 1 cannot assent to the proposition advanced in the opinion of the learned presiding judge that the question here presented relates to ihe light of an officer of a foreign navy to require the assistance of the courts of this country for the recapture of a deserter. Captain Behr is not the actor in this case. On the contrary the relator has proceeded against Captain Behr and the keeper of the county prison. The former was committed by a United Btates Commissioner to the custody of the keeper of the prison, to be held subject to the order of the Russian vice-consul at Philadelphia or of Captain Behr, master of the Variag. The relator in his petition for a writ, of habeas corpus prayed that the writ might be directed to the keeper of the prison and to Captain Behr, and the writ was so directed. Although the commitment was illegal, the relator was in fact held by the keeper of the prison subject to the order of Captain Bein', and it was